low-subjects when properly brought before him, and this. is my observation: Mr. Justice Foster has sanctioned a constructive Treason which I humbly contend the written law of the land expressly prohibits, I argue that he has gone too far; but if he who has gone too far admits the viciousness of one authority, on which the only respectable decision is founded, surely there is no fallacy in my claiming that this particular opinion of Mr. Justice Foster may be taken against his general principle. There is no shadow of inconsistency in asserting that even Mr. Justice Foster, whose error consists in going beyond the statute, has stopped short however of that particular case, and has therefore divested his doctrine of any support which it could have derived from its authority.

Let us proceed then to enquire on what other authority the case of Damaree and Purchase was founded. It was founded, Gentlemen, upon that extraordinary case in the reign of Charles II. in which a number of apprentices meeting in London to destroy houses of ill-fame, were considered as guilty of High Treason for renouncing their natural allegiance, and levying war against the King. Now, Gentlemen, I shall content myself with observing, that that case was decided in the reign of Charles II. a reign as corrupt and infamous as any which disgraces our annals; polluted with every domestic vice, and degraded by every exertion of tyranny and corruption. In such times the doctrine of constructive Treason originated; with them it should have perished.

Gentlemen, I adverted to the reign of Charles I. and stated that the Archbishop who had been protected by an illegal extension of the statute, himself fell a victim to the same abuse when a different party came into power. It is singular that Lord Strafford, his friend and colleague, was also brought before the House of Lords on a charge of constructive Treason. He was tried by his Peers for Treason not specified by the statute, and though, I dare say, Gentlemen, you have all read the noble pleading by which he defended himself, I will takē the liberty of quoting a short extract from it, as forcibly

illustrating the evil against which I have struggled. "Better it were to live under no law at all, and by the maxims of cautious prudence to conform ourselves the best we can to the arbitrary will of a master than fancy we have a law on which we can rely, and find, at last, that this law shall inflict a punishment precedent to the promulgation, and try us by maxims unheard of till the very moment of the prosecution. If I sail on the Thames and split my vessel on an anchor, in case there be no buoy to give warning, the party shall pay me damages; but if the anchor be marked out, then is the striking on it at my own peril. Where is the mark set upon this crime? Where the token by which I should discover it it has lain concealed under water-and no human prudence, no human innocence, could save me from the destruction with which I am at present threatened? It is now" he says, "full two hundred and forty years since Treasons were defined, and so long has it been since any man was touched to this extent upon this crime before myself; we have lived, my Lords, happily to ourselves at home, we have lived gloriously abroad to the worldlet us be content with what our fathers have left us, let not our ambition carry us to be more learned than they were in these killing and destructive arts. Great wisdom it will be in your Lordships, and just providence for yourselves, for your posterities, for the whole kingdom, to cast from you into the fire these bloody and mysterious volumes of arbitrary and constructive Treasons, as the primitive Christians did their books of curious arts; and betake yourselves to the plain letter of the statute which tells you where the crime is, and points out to you the path by which you may avoid it."

Such, Gentlemen, were the observations of my Lord Strafford, when he stood a Prisoner indicted for constructive Treason before the Peers of the Realm. By his Peers he was acquitted: but in the progress of those unfortunate times, when tyranny became law and bore down all, before it, when the House of Peers was cleared of much that was honourable, and the King was the mere

tool of a party, then contrary to every principle of law, in violation of the first elements of justice, an Act of Parliament passed after the fact committed, making that fact High Treason for the first time. He was condemned by the enactment of a new law, not by the application of any which existed, and that unfortunate Nobleman lost his head upon the scaffold. Thus, Gentlemen, the history of the law of constructive Treason is carried up from Lord Strafford's time to the reign of Henry VIII.; for in the whole of that interval no similar decision can be found. And with regard to that first decision, from which all the rest have flowed, there is every reason to believe that the Legislature, shocked at the length to which the Judges had gone, in declaring a rising for the enhancement of wages a levying of war against the King, enacted the Statute of Edward VI. for the purpose of préventing a repetition of such constructive extensions of the law.

Gentlemen, will it be imputed to me to-day that I charge the Crown with a desire to make Treasons unheard of before, and that through the medium of a Court of Justice?—I disclaim any such intention, and admit on the contrary, that constructive Treasons have been engrafted on the statute, which in terms proscribes them. But founding myself on that statute, on its object and provisions, and claiming the right to examine the authority on which the adverse decisions rest, I find that all the precedents are drawn from those disgraceful times which we cannot bear to think of, and which we would wish to forget had ever existed.

Having spoken thus largely of the law of Treason in general, I would now beg leave to call your attention to that law, as I think it applicable to the present Prisoner. And I may here state a proposition which cannot be denied, that though various persons assemble and are combined in the execution of the same act, still, according to that humane shall I say, or just principle, that every man is to be judged for his own acts, and can be guilty only as his intention is guilty: it is always proper to enquire by what motives they were severally actuated, and

what intentions and purposes were entertained by each. : It is obviously very possible, and indeed nothing is more easily conceived, than that where the act done might be justly termed levying war against the King; some of the parties concerned might be guilty of High Treason, while others were altogether innocent. I will put a case which seems to illustrate that position. Supposing that in the course of the Rebellion in the year 1745, one of the King's officers had been tampered with by the Pretender, and had led his regiment to attack the King's troops, representing them to be the troops of the enemy, the poor soldiers would have levied war against the King in fact, but not in intention; and while those privy to the design would be guilty of High Treason, those who were unconscious of the mischief which their acts produced, were as clear of the crime as the weapon in their hands. Suppose a man to take advantage of a riot in a fair, and that finding a considerable force there assembled he conducts the rioters, who thought of nothing but riot, to commit acts of hostility against the King; that leader would be guilty of Treason, while his followers were liable only for a common misdemeanor. I will put one case more, where parties ignorant of the design they were employed to accomplish, might incur a lower degree of criminality. Suppose that when parties of the Luddites were assembled in this and the neighbouring Counties for the purpose breaking frames, any person had formed the design of leading them, not to break frames or houses, but to besiege a fort of the King's, or commit any other act unequivocally directed against the Government; in that case it must be granted me, that the leaders were guilty of High Treason, while the rest could be charged only with the precise crime they had in their minds. Then, Gentlemen, if that be so, it follows, that in every case the motive of the individual is to be ascertained; the burthen of proof lies always upon those who make the charge, and therefore it by no means follows, because one may be guilty to the blackest possible degree of guilt, that therefore all associated with him must necessarily be guilty to the same, or indeed in any degree.

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Let us examine then, Gentlemen, upon this present occasion how the evidence stands. In the first place, it is opened to you by my learned Friends, that there had been previous consultations: if that were so, was it not due to the justice of the country-was it not due to the publicand to the Prisoner, to throw the fullest light on those consultations? My learned Friends have had ample means of gaining every possible information and intelligence; their instructions have been prepared with an acuteness, a sagacity, and a diligence which deserve every praise. They have necessarily commanded all the assistance that could be rendered by the Magistracy, and the suspension of the Habeas Corpus Act has enabled them to arrest not only such persons against whom charges were preferred, but any one whom, for the safety of the state, it should be thought necessary to examine as to his own history, or that of others. If then there were consultations previous to this Sunday, the 8th of June, and if my learned Friends knew there were such consultations, why are they kept behind the curtain and concealed from your sight, who are entitled to know the whole truth? Who attended them?-Who promoted them?-Who, and what was he who set the machinery in motion?Who was it that dispatched Brandreth from Nottingham to these country villages to inflame the minds of the santry, to delude their understandings, to incite them to acts of outrage and mischief? Gentlemen, there is something hid in mystery; I cannot fathom it, whatever I may conjecture; but I know that at the critical period when this precise act was committed, at whose instigation soever, the Legislature was consulting about the Suspension of the Habeas Corpus Act, and the Committee of the House of Lords, who took that subject into consideration, reported that they had reason to believe, and know, that spies were active throughout the country, and were actively instigating the mischief which in several places was likely to result that we all know; if I am mistaken I shall be glad to be corrected.

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Mr. Attorney General. My Lord, I am very sorry to inter

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